Expert determination typically refers to a mechanism common to some PPP contracts where disputes that are of a 'technical nature' are referred to an individual or panel of experts with the relevant technical expertise for a determination. A PPP contract may set out the issues of a 'technical nature' that are applicable. These typically include things like scheduling forecasts, specific valuations and accountancy issues.
The expert will consider factual evidence (whether witness or documentary), but expert determination is not a forum for cross-examination of witnesses. In addition, it is common for the parties to submit reports from party-appointed experts to support their own standpoints.
Expert determination is different to the other dispute resolution mechanisms mentioned because of the narrow scope covered. There are advantages to this as the determination is typically binding and relatively quick and cost effective for the specific issues referred. A determination by only one expert on very technical issues is not uncommon. 25% of the PPP contracts reviewed globally allowed for expert determination. There can also be contractual timetable constraints around expert determinations. There often needs to be agreement to a reasonable extension to the contractual timetable for the expert to issue their decision. If a decision is issued out of time there is a risk the determination may be invalidated.
It is rare to find a dispute that is exclusively technical. Money is usually the underlying basis of most disputes and while it may be possible to isolate a technical issue for referral, in practice parties often combine all or the majority of issues. This may mean that elements of the dispute are outside the strict scope of the appointees' expertise. However, resolving the very technical aspects of a dispute can assist the parties to come to a common understanding of the underlying facts of a broader dispute and help to reach a commercial resolution.
The 2017 version of the World Bank's Guidance on PPP Contractual Provisions5 provides additional helpful commentary on typical expert determination dispute resolution mechanisms.
_______________________________________________________________________
5 Available at http://ppp.worldbank.org/public-private-partnership/ library/guidance-on-ppp-contractual-provisions-2017-edition